Rehmann v. City of Des Moines

• Decision Date: 25 June 1925
• Docket Number: 36557
• Citation: 204 N.W. 267,200 Iowa 286
• Parties: JOHN C. REHMANN et al., Appellants, v. CITY OF DES MOINES et al., Appellees
• Court: Iowa Supreme Court

204 N.W. 267

200 Iowa 286

JOHN C. REHMANN et al., Appellants, v. CITY OF DES MOINES et al., Appellees

No. 36557

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

ACTION in equity, to enjoin the defendant officers of the city of Des Moines from interfering with plaintiffs in the construction of a brick store building on the northeast corner of Thirty-ninth Street and University Avenue, in the city of Des Moines. The facts are fully stated in the opinion. Decree dismissing plaintiffs' petition, and they appeal.--Reversed and remanded.

Reversed and remanded.

James C. Hume, for appellants.

John J Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, for appellees.

STEVENS J. FAVILLE, C. J., and EVANS and VERMILION, JJ., concur.

OPINION

STEVENS, J.

The questions presented for decision upon this appeal arise out of the refusal of the court below to permanently enjoin appellees, who are the mayor and councilmen of the city of Des Moines, from interfering with the erection of a store building at the corner of Thirty-ninth Street and University Avenue, in the city of Des Moines, by appellants under a permit previously issued by the department of streets and public improvements of said city and revoked by the action of the city council a few days later, and the denial of the prayer of their petition for a writ of mandamus to compel the issuance of a new building permit as alternative relief.

Appellants, who were the owners of a tract of land situated at the northeast corner of University Avenue and West Thirty-ninth Street, on or about March 12, 1924, entered into a contract with one Vortruba, to sell the same to him, and, as a part of the consideration therefor, agreed to erect a one-story brick store building thereon. The plans and specifications for the building were submitted to the proper officer of the defendant city and approved by him. On April 1st, a permit in the usual form, granting appellants permission to erect a building according to the plans and specifications filed with the city, was issued. On April 3d, the city council attempted to revoke the said permit, and directed the city legal department to immediately notify appellants of its action and to tender back the fee paid therefor. Immediate action was taken by the legal department; and, on the same day, appellants were notified to cease the work of excavation, already begun, for the building, and that the permit issued to them had been revoked. A few days later, this action was commenced, to restrain appellees from interfering with the construction of the building in accordance with the permit issued therefor. At or about the close of the trial, appellants filed an amendment to their petition, praying in the alternative for a writ of mandamus to compel appellees to issue a new permit for the erection of the building. The petition was dismissed by the court for want of equity, and the costs were taxed to appellants.

The defense set up by appellees is that the permit was obtained by fraud, and that appellants were guilty of such inequitable conduct as to estop them to seek the aid of a court of equity, and that, at most, the permit issued was a mere license, revocable at the pleasure of the officer issuing the same. It is established by a fair preponderance of the evidence that the superintendent of the department of streets and public improvements of the defendant city was reluctant to grant the permit, upon the grounds that the locality described is in the midst of an exclusive residential district, and that the erection of a brick store building therein would certainly provoke the opposition and hostility of adjacent and surrounding property owners. Mr. Mitchell, having charge of the issuance of permits for building purposes, testified that the application therefor was finally granted upon the representations and promises of appellants that, if substantial opposition to the erection of the building developed on the part of other property owners, they would desist, and hold the city harmless. The witness further testified that he requested one of appellants to ascertain definitely the sentiment of the community before the permit was issued, but that he reported that he had been unable to secure an interview with any considerable number of the other property owners, and that it was impracticable for him to secure the desired information. The further claim is made that appellants also asked for the permit for the purpose of meeting their agreement with Vortruba.

As soon as the work of excavating the ground for the construction of the building commenced, the city council was met with a storm of protests; and written objections, numerously signed, were promptly filed. The action of the city council in attempting to revoke the permit was the result of these objections and protests against the invasion of the territory by any firm of business activity. It appears that there are business houses on University Avenue at Thirty-fifth and at Forty-second Street.

As the ultimate question for decision, upon any theory of the case, is the right of appellants to a permit to erect a store building at the place mentioned, we shall dispose of all the propositions argued together. At the outset of this discussion, we desire to call attention to a few provisions of the statute enacted for the benefit of property owners situated as the objectors are in this community, and now in force.

Authority is conferred by the provisions of Chapter 324 of the Code of 1924, upon cities, towns, and cities acting under the commission plan of government, "to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." Section 6452.

"For any or all of said purposes the local legislative body, hereinafter referred to as the council, may divide the city or town into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this chapter; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land. All such regulations and restrictions shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts." Section 6453.

It is further provided by Section 6454 that:

"Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the street; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements."

For the purpose of carrying out the provisions of this chapter, provision is made for the appointment of a zoning commission, whose powers and duties are thereby prescribed. Authority is also conferred upon cities of the first class, including cities under the commission form of government, to designate and establish restricted residence districts within the limits of such municipalities.

It is of course, fundamental in the law of real property situated within the limits of cities and towns, that the...